In July 2017, the CCR joined others in a new legal challenge. Federal Judge Ann Marie McDonald ruled that the agreement violated a section of the Canadian Charter of Rights that states that laws or acts of state that affect liberty and security must respect the principles of fundamental justice. The government said repealing the agreement would result in an « influx » of asylum seekers at the border, making it more difficult for different levels of government to maintain the existing refugee system, including the provision of housing and other social services. This agreement meant that Canada had to reject anyone arriving from the United States at an official port of entry and prevent them from filing a refugee claim in Canada, given that the United States is considered a « safe country » to assert such a right. However, refugee claimants discovered what is called a loophole in this agreement, which meant that when they arrived between official ports of entry, they could make their claim in Canada. The CCR continues to call on the Canadian government to withdraw from the Safe Third Country Agreement. The CCR participated in a legal challenge to deportation from the United States as a safe third country shortly after it went into effect. The Federal Court ruled that the United States is not a safe third country, but the decision was overturned on appeal for technical reasons (see here for more information). Conventions relating to safe third countries are not explicitly mentioned in the 1951 Convention relating to the Status of Refugees or in the 1967 Protocol relating to the Status of Refugees. Instead, their legality derives from Article 31 of the 1951 Convention, which states that a refugee should not be punished for illegal entry into a country when arriving directly from a country where he or she was threatened.
The United Nations High Commissioner for Refugees (UNHCR) has itself warned against overly broad an interpretation of safe third country agreements, but acknowledges that they may be acceptable in certain circumstances.  Such ambiguities have led some jurists in Canada to question the legality of the Canada-U.S. Safe Third Country Agreement.  Last July, the Federal Court declared the STCA unconstitutional because it violates « the right to life, liberty and security of the person, » as guaranteed by the Canadian Charter of Rights and Freedoms. The case was filed by Amnesty International, the Canadian Council of Refugees and the Canadian Council of Churches on behalf of several trial prosecutors. The judge`s decision upheld the argument made for years by refugee and human rights advocates that the United States, including under the Trump administration, was not a safe place for refugees. This changed with the election of President Donald Trump in 2016 on a remarkable anti-migrant platform and the announcement in 2017 by his government of the end of the temporary designation of protected status (TPS). While the largest group of people who benefited from TPS were from El Salvador (about 200,000), the appellation also included nearly 60,000 Haitians who have been living and working since a devastating earthquake in the United States in 2010. A safe third country is a state in which a person passing through that country could have applied for refugee protection.
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